Judgment RAJENDRA SAXENA, J. ( 1 ) APPELLANT Khyala Meena was tried for offence under Section 302, IPC by the Additional Sessions Judge, Dausa for committing murder of Ramkishor alias Kishore. The learned trial Judge vide his judgment dated 16-9-81 convicted the appellant for offence under Section 302, IPC, and sentenced him to life imprisonment. ( 2 ) BRIEFLY, the prosecution case was that appellant Khyala and deceased Ramkishore were partners. They used to cultivate jointly. They also used to sleep together in their Khaliyan situated in the outskirts of village Nihalpura. On the night intervening 8th and 9th April, 1979 till about 11 p. m. the deceased was sitting on the shop of Mangilal (not produced in witness box ). Thereafter, he was seen going towards his khaliyan PW2 Indraj and others heard voices of the appellant and deceased, who were having conversation with each other from their Khaliyan. Next day morning at 5 a. m. PW5 Jhandu Meena found the dead body of the deceased in a cattle pond annexed to Jhajhar well. Jhandu also saw the appellant going on his camel cart towards village Nihalpura. Jhandu informed about the dead body to PW 13 Hajari brother of the deceased and other villagers. The villagers went to the Khaliyan of the deceased, where they found that gadda (Art. 2), and cot (Art. 1) were soaked with blood. Blood stains were also found lying underneath the cot and on the kutcha floor of the Khaliyan. Thereafter, villagers went to PW 10 Sarpanch Ramjilal, and informed him. PW 4 Mangilal scribed a report Ex-P 6 on behalf of PW 10 Ramjilal. That report was also signed by the villagers. Mangilal went to the police station Bandlkui and on 9-4-79 at about 11. 40 a. m. submitted report Ex. P. 6, whereupon PW 17 Rajbal Singh, ASI, who was at that time Incharge of the Police Station drew the formal FIR Ex. P. 7. Rajbal Singh and Ridh Karan PW 15 Dy. S. P. reached Nihalpura village on the same day at about 2. 30 p. m. They inspected the dead body of Ram Kishore and prepared inquest report Ex. P. l. They seized and sealed samples of blood stained soil and the controlled sample of earth from the Khaliyan vide Seizure Memo Ex. P. 2 and Ex. P. 4 respectively. S. P. reached Nihalpura village on the same day at about 2. 30 p. m. They inspected the dead body of Ram Kishore and prepared inquest report Ex. P. l. They seized and sealed samples of blood stained soil and the controlled sample of earth from the Khaliyan vide Seizure Memo Ex. P. 2 and Ex. P. 4 respectively. Blood stained parts of the cot (Art. 1) as also blood stained gadda (Art. 2) were also seized by them vide seizure memos Ex. P. 3 and P. 5, respectively. They also prepared site plan Ex. P. 8. ( 3 ) DR. B. S. Thakuria (PW 8) conducted medico legal autopsy of the deceased. He found three incised wounds on the left fore-head, parietal region and left occipital parietal region of the scalp, depressed wound 2" x 2" x 1/4" on the left eye and eyebrow and abrasions on the right side bone of penis and groin region. The doctor prepared post mortem report Ex. P. 15 and opined that the cause of death of the deceased was shock due to intra-cranial haemorrhage caused by multiple injuries on the scalp. ( 4 ) IT is the case of the prosecution that in the morning of 9-4-79 the appellant made extra-judicial confession before PW 2 Indraj, PW 3 Rewar, PW 6 Ramkhilari, PW 8 Rewar Ram, PW 9 Girraj, PW 10 Ramjilal (Sarpanch), PW 13 Hajari, PW 14 Ramkhilari and PW 16 Gangadhar to the effect that he had illicit relation with the wife of the deceased and apprehending that the deceased would kill him, he dealt axe blows on his head and killed him. ( 5 ) ON 10-4-1979 the appellant was arrested vide arrest memo Ex. P. 11. It is alleged that on 13-4-79 he volunteered information Ex. P. 16 and P. 17 and in pursuance thereof got recovered his camel cart, which was parked in the way outside his house vide recovery memo Ex. P. 12, blood stained axe (Art. 12) and blood stained spade (Art. 11) from his house vide recovery memo Ex. P. 13. Blood stained shirt, tehmad and towel (Arts. 3, 4 and 5 respectively) were also seized and sealed from the person of the appellant at the time of his arrest. The blood stained apparels of the deceased were also seized and sealed vide Seizure Memo Ex. P-9. P. 13. Blood stained shirt, tehmad and towel (Arts. 3, 4 and 5 respectively) were also seized and sealed from the person of the appellant at the time of his arrest. The blood stained apparels of the deceased were also seized and sealed vide Seizure Memo Ex. P-9. All those articles were sent to the Forensic Science Laboratory for chemical and serological examination. . As per F. S. L. report Ex. P. 29 blood was detected in blood smeared soil, dhoti, kurta, and towel of the deceased, gadda, wooden pieces of laddi (camel cart) axe (kharwadi) and shirt, tehmad and towel of the appellant. However, origin of the blood on those articles was not disclosed in the F. S. L. report Ex. P. 29. The prosecution also did not tender in evidence the report of the Serologist, as such the origin and blood group of the blood on those articles were not determined. ( 6 ) AFTER investigation, the police submitted the challan against the appellant in the Court of the learned Judicial Magistrate, Bandi Kui, who in turn committed the case to the Court of Sessions. The appellant was charged for the offence under Section 302, IPC. He denied the indictment and demanded trial. To prove its case, the prosecution examined as many as 18 witnesses. The appellant in his plea recorded under Section 313 Cr. P. C. denied the circumstances appearing against him in the prosecution evidence and asserted that the prosecution witnesses had deposed against him due to animosity. However, he did not examine any witness in his defence. After trial the learned Judge by his impugned judgment convicted and sentenced the appellant in the manner indicated above. Hence this appeal. ( 7 ) WE have heard Shri P. C. Jain, learned counsel for the appellant, Shri M. L. Goyal, learned Public Prosecutor and Shri Dinesh Kala, learned counsel for the complainant at length and carefully perused the record of the trial Court in extenso. ( 8 ) IT was vehemently argued by Shri P. C. Jain that the evidence regarding last seen is quite vague, contradictory and unreliable and that the alleged recoveries of axe, spade, wooden pieces of camel cart at the instance of the appellant are fake and fabricated. ( 8 ) IT was vehemently argued by Shri P. C. Jain that the evidence regarding last seen is quite vague, contradictory and unreliable and that the alleged recoveries of axe, spade, wooden pieces of camel cart at the instance of the appellant are fake and fabricated. Since the origin of the blood found on the clothes of the appellant and the deceased and on the gadda, pieces of the cot and axe have not been determined in the FSL Report Ex. P. 29, the prosecution has miserably failed to prove beyond reasonable doubt that the blood found on those articles was human blood. Moreover the prosecution did not tender the report of serologist in evidence. There is not a fringe of evidence to establish that the blood found on those articles was that of the deceased. Shri Jain, has asserted that the alleged recoveries are futile and meaningless and those do not connect the appellant with the crime. Another limb of his argument is that the story of extra judicial confession alleged to have been made by the appellant is totally false, fabricated and concocted. According to him, material chains in evidence for connecting the appellant with crime are conspicuously missing in this case and the learned trial Judge has conveniently ignored aforesaid material infirmities in the prosecution evidence. Shri P. C. Jain has, therefore, submitted that it is a fit case wherein the appellant deserves to be acquitted. ( 9 ) ON the other hand, Sarva Shri M. L. Goyal, learned Public Prosecutor and Shri Dinesh Kala have supported the impugned judgment and reiterated the reasonings given by the learned trial Judge. ( 10 ) WE have, given our thoughtful consideration to the rival submissions. In this case there is no direct evidence. The whole case hinges on circumstantial evidence. It is needless to mention that in a case based on circumstantial evidence, the circumstances, from which conclusion of guilt is to be drawn should be, fully proved by clear, cogent and convincing evidence and that those circumstances must be conclusive in nature to connect the accused with the crime, and that all the links in the chain of events must be established beyond reasonable doubt and therefore, the circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. ( 11 ) IN Balwinder Singh v. State of Punjab, AIR 1996 SC 606, the Apex Court has reiterated that in a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid, the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. ( 12 ) KEEPING in view the aforesaid well crystallised principles regarding appreciation of evidence in a case based on circumstantial evidence, let us now find out as to which of the circumstances have been established against the appellant by the prosecution. ( 13 ) THE learned trial Judge held that the following circumstances were proved by the prosecution evidence: (1) that the appellant and deceased were last seen in the Khaliyan of the appellant in the night where they used to sleep together; (2 ) that the dead body of the deceased was found in the cattle pond of "jhajhar" well; (3) that the blood stains were found on the "gadda", cot, and floor of the Khaliyan; (4) that the blood stains were also found on the apparels of the appellant; (5) that the appellant made extra judicial confession before the villagers; and. (6) that the wife of the deceased has been living with the appellant;in Re. Circumstance No. 1. ( 14 ) PW 2 Indraj deposed that on the preceding night of incident, the deceased was sitting alongwith him on the shop of Mangilal and was gossiping and smoking a tobacco pipe chilam till 10-11 p. m. with Chhajulal (PW 11), Rewar (PW 3), Mishri, and Ramkhilari (PW 6 ). Thereafter they all dispersed and went to their respective houses. The deceased proceeded to his Khaliyan. He further deposed that while he was going towards his house, in the way he had heard voices of the appellant and the deceased from their Khaliyan, and that the appellant had asked the deceased as to how had he come late, to which the deceased replied, "baitha Uttha Mein, Aise Hi Deri Ho Gayi". He further deposed that while he was going towards his house, in the way he had heard voices of the appellant and the deceased from their Khaliyan, and that the appellant had asked the deceased as to how had he come late, to which the deceased replied, "baitha Uttha Mein, Aise Hi Deri Ho Gayi". In cross examination, this witness stated that the Khaliyan of the appellant was situated at a distance of 100 paces from the shop of Mangilal and that fields of Narain and Kishan and the "rakhar" (cluster of houses) are situated between the said Khaliyan and Mangilals shop. Indraj stated that he heard voices of conversation of the appellant and the deceased when he had already crossed a distance of about 20 "pawandas" from the shop of Mangilal, meaning thereby he had heard the said conversation from a distance about 120 paces, i. e. about 180 yards. It does not sound to reason that one would hear such conversation from such a distance. Mangilal shop-keeper has not been examined by the prosecution. Written report Ex. P. 6 also bears the signature of Indraj (PW 2) but the aforementioned facts regarding last seen evidence do not find mention therein. No other witnesses has corroborated this statement of Indraj (PW 2) on this vital count. ( 15 ) REWAR (PW 3) docs not say that he was sitting on the shop of Mangilal on that night and that he had seen the deceased going towards the Khaliyan of the appellant. Ramkhilari (PW 6) also does not support (PW 2 ). On the other hand, Ramkhilari has come out with a new story and stated that during that night he had seen the appellant and the deceased at latters house and that he did not have any conversation with them. ( 16 ) REWAR Ram (PW 8) deposed that on that night at about 11 p. m. he alongwith Girraj (PW 9), Chhaju (PW 11), Indraj (PW 2), and Ramkhilari (PW 6) were sitting on the shop of Mangilal and that at that time, he had seen the deceased going towards his Khaliyan. Thus, Rewar Ram PW 8 does not say that the deceased was sitting with them and that he shared smoke till 11 p. m. ( 17 ) GIRRAJ (PW 9) deposed that on that night he had simply seen the deceased going towards his Khaliyan. Thus, Rewar Ram PW 8 does not say that the deceased was sitting with them and that he shared smoke till 11 p. m. ( 17 ) GIRRAJ (PW 9) deposed that on that night he had simply seen the deceased going towards his Khaliyan. ( 18 ) PW 11 Chhaju Lal has simply proved the inquest report Ex. P. 1. He does not corroborate statement of Indraj PW 2 on this count. Hajari (PW 13) deposed that on the night preceding he alongwith Gangadhar (PW 16) Girraj (PW 9) and the deceased were sitting on the Chabutra of Mangilal and at about 10 p. m. the deceased went towards his Khaliyan. He invented a new story and stated that the deceased had shouted and asked the deceased as to whether he was sleeping or keeping awake and that thereupon the appellant had asked the former as to why had he come late ? ( 19 ) PW 14 Ramkhilari deposed that on the ill fated night, he left Mangilals shop where the deceased and others were sitting, that he had gone to engage some labour on that night and that when he returned he had seen the appellant and the deceased talking with each other. However, the prosecution did not examine Sodia. This witness has improved his statement during trial, because in his police statement Ex. D. 7 these facts are conspicuously missing. He has failed to give any plausible reason for this material omission in Ex. D. 7. In our considered opinion, he is not a reliable witness. ( 20 ) GANGADHAR (PW 16) stated that the deceased was sitting on the shop of Mangilal alongwith others at about 10 p. m. but he does not say that he had seen the deceased going towards Khaliyan and/or had seen the latter talking to the appellant in the Khaliyan, his conversation with the appellant. ( 21 ) THUS these prosecution witnesses have given different versions on this score and their statements are inconsistent, replete with material contradictions. In our considered opinion, the prosecution evidence to the effect that the deceased and the appellant were last seen together is quite vague, contradictory and unworthy of credence. The learned trial Judge has misread the evidence and committed error in holding that it was proved that the appellant was last seen with the deceased on the night preceding incident. In our considered opinion, the prosecution evidence to the effect that the deceased and the appellant were last seen together is quite vague, contradictory and unworthy of credence. The learned trial Judge has misread the evidence and committed error in holding that it was proved that the appellant was last seen with the deceased on the night preceding incident. Simply because the deceased and the appellant used to sleep together in the same Khaliyan, it cannot be conclusively held that on the night of 8th and 9th April, 1979, the appellant was last seen with the deceased or that he had any conversation with him. Therefore, the first circumstance has not been established beyond reasonable doubt against the appellant. In Re. Circumstance No. 2. ( 22 ) FROM the testimony of Jhandu (PW 5), it stands firmly established that the dead body of the deceased was found in the cattle pond annexed to the Jhajhar well. It is also borne out from the prosecution evidence that this Jhajhar well is on the other side of the village and situated at a distance of more than 200-250 paces from the Khaliyan of the appellant. From the testimony of the prosecution witnesses, it is also well proved that one has to pass through village abadi while coming from the Khaliyan, to the jhajhar well. The learned trial Judge has rightly disbelieved statement of Jhandu (PW 5) that he had seen the appellant coming from the side of Jhajhar well on camel cart at 5 a. m. and going towards his Khaliyan because such version does not find mention in his police statement Ex. D. 2in Re. Circumstance Nos. 3. and 4. ( 23 ) RAJBAL Singh ASI (PW 17) and Ridh Karan Dy. S. P. (PW 15) deposed that they had inspected the place of occurrence and prepared site plan Ex. P. 8 and seized blood stained gadda (Art. 2), pieces of blood stained cot (Art. 1) and also lifted blood stained soil from the floor of Khaliyan vide seizure memos Ex. Ps. 5, 3, and 2 respectively. Motbirs, Ridhkaran (PW 15), Ramkhilari (PW 6) have proved arrest memo of the appellant and stated that the blood stained shirt, tehmat and Towel, which he was putting on, were seized and sealed by the police. Ps. 5, 3, and 2 respectively. Motbirs, Ridhkaran (PW 15), Ramkhilari (PW 6) have proved arrest memo of the appellant and stated that the blood stained shirt, tehmat and Towel, which he was putting on, were seized and sealed by the police. Similarly, from statement of these witnesses, it is also well proved that the blood stained dhoti, kurta, and towel were taken away from the dead body of the deceased and seized vide seizure memo Ex. P. 9. However, the prosecution has not examined the incharge of Malkhana and the carrier, who had carried the sealed packets of those clothes and other articles to the office of the Superintendent of Police and thereafter to the Forensic Science Laboratory. Rajbal Singh (PW 17) and Ridhkaran (PW 15), who investigated the case have also not deposed that the seals of those packets remained intact till those were received in the office of the F. S. L. Thus, there is not an iota of evidence to conclusively prove that the seals of those packets were not tampered with and that those remained intact till they had reached the office of the F. S. L. Besides this, as mentioned earlier, in the F. S. L. report Ex. P. 21 it has simply been mentioned that the blood was detected on the apparels of the deceased and the appellant, gadda and pieces of wood of the cot and axe, but, curiously enough, it has not been mentioned that the blood found on these articles was human blood. The prosecution has deliberately not tendered in evidence the report of the serologist to establish that the aforementioned articles were stained with human blood. Again, blood group/origin of the blood found on those articles has also not been determined. Thus, there is no clear, cogent and convincing evidence to establish that the blood stains on the clothes of the appellant were of the blood group of the deceased. In view of this, the evidence regarding circumstance Nos. 3 and 4 relied upon by the trial Court does not connect the appellant with the crime. The learned Judge has thus wrongly held that the circumstance Nos. 3 and 4 incriminate the accused appellant with the crime. In Re. Circumstance No. 5 - Extra Judicial Confession. ( 24 ) AT the very out set it may be pointed out that in written report Ex. The learned Judge has thus wrongly held that the circumstance Nos. 3 and 4 incriminate the accused appellant with the crime. In Re. Circumstance No. 5 - Extra Judicial Confession. ( 24 ) AT the very out set it may be pointed out that in written report Ex. P. 6, which was lodged at police station, Bandi Kui on 9-4-79 at about 11. 40 a. m. this fact that the appellant had made an extra judicial confession before the villagers does not find mention. It is the prosecution case that the appellant had made extra judicial confession before prosecution witnesses, namely Indraj, Rewar, Ramkhilari, Revarram, Girraj, Hajari and Gangadhar, in the morning of 9-4-79 outside Panchayat office. But, statements of these witnesses on this score are quite inconsistent, contradictory and unreliable. Indraj (PW 2) stated that on the information given by Jhandu (PW 5) he alongwith other villagers went to the cattle pond of village jhajhar well where he found dead body of the deceased and that thereafter they went to the Khaliyan of the appellant, and that in the morning at that time, they had seen the appellant coming from the Khaliyan. However, no other prosecution witnesses has stated likewise. Indraj (PW 2) stated that from the Khaliyan they went to the house of Ramkhilari (PW 14) where the appellant called, that the appellant came there. They asked the appellant about the incident, and that thereupon, the latter told them that he had illicit relations with the wife of the deceased, that he apprehended that the deceased would kill him and, therefore, he dealt axe blows on the head of the deceased. The appellant also informed them that after committing the murder he had carried the dead body of the deceased on his camel cart and thereafter he carried the dead body on his back and placed the same in the cattle pond. Indraj (PW 2) specially deposed that the appellant had made this confession before them at sunrise, and that thereafter Ramjilal, Sarpanch PW 10 got the written report Ex. P. 6 scribed and sent the same to the police station. Thus, from the testimony of this witness it is abundantly apparent that the appellant had made the alleged extra judicial confession early in the morning before the written report Ex. P. 6 was scribed and sent to the police station. P. 6 scribed and sent the same to the police station. Thus, from the testimony of this witness it is abundantly apparent that the appellant had made the alleged extra judicial confession early in the morning before the written report Ex. P. 6 was scribed and sent to the police station. But, the factum of extra judicial confession is conspicuously missing in the written report Ex. P. 6. This shows that the story of extra judicial confession has been concocted later on. Indraj was examined by the trial Court on 18-7-80. Rewar PW 3 and others were examined later on, from 22-8-80 to 4-4-81 on different dates. Rewar PW 3 in his statement improved the prosecution story and stated that when the report Ex. P. 6 was being written, the appellant was not present there, that he alongwith other villagers had gone to Khaliyan at 8 a. m. and that the report Ex. P. 6 was got scribed even prior to that. But, this fact is not correct because, in written report Ex. P. 6 it has been clearly mentioned that in the Khaliyan the blood stained Gadda, cot, and the clothes of the deceased were lying and that the blood was also spreading on the floor of the Khaliyan. It has also been mentioned in the written report Ex. P. 6 that the cot lying in the Khaliyan appeared to have been washed by the water. Therefore, it is crystal clear that the written report Ex. P. 6 was scribed after the witnesses and the villagers had gone to the Khaliyan and seen the blood stained gadda and cot lying there. This witness further stated that he alongwith others had gone to the Khaliyan following trails of blood drops from the Jhajhar well to the Khaliyan. But as per the site plan Ex. P. 8 no such trail of blood was found by the investigating officer, even in the Khaliyan. Rewar (PW 3) in his cross-examination admitted that they had called the appellant at 9-10 a. m. and at that time, the latter had made extra judicial confession. He stated that when the police came to the village, he did not disclose to the investigating officer about the factum of extra judicial confession made by the appellant. Rewar (PW 3) in his cross-examination admitted that they had called the appellant at 9-10 a. m. and at that time, the latter had made extra judicial confession. He stated that when the police came to the village, he did not disclose to the investigating officer about the factum of extra judicial confession made by the appellant. Rajbal Singh PW 17 deposed that after registering the case he reached the place of occurrence on 9-4-79 at about 2-30 p. m. and that till he prepared the inquest report Ex. P. 1, no body had informed him about the alleged extra judicial confession made by the appellant. In the inquest report Ex. P. 1, the prosecution witnesses namely Rewaram, Ramkhilari and Chhajulal were also associated as motbirs of the locality. If in fact appellant had made an extra judicial confession before them in the morning of 9-4-79, then there is no reason as to why they did not inform about the extra judicial confession of the appellant, to Rajbal Singh 10 (PW 17 ). In the inquest report Ex. P. 1 non mention of the factum of the extra judicial confession per se proves that no such extra judicial confession was made by the accused appellant on 9-4-79 till 2. 30 p. m. It appears that the story of extra judicial confession has been invented later on during the investigation. Ramkhilari (PW 6), Revar Ram (PW 8) Girraj (PW 9), Ramjilal (PW 10), Hajari (PW 13), Ramkhilari (PW 14) and Gangadhar (PW 16) have given different versions about the alleged extra judicial confession of the appellant. As per statement of Ramkhilari (PW 6) when the villagers asked the appellant whether he had murdered the deceased, Khyala (appellant) told them that he had killed him and they were free to tell whatever they liked. This witness admitted that the appellant was called by the villagers, who had assembled in front of the house of Sarpanch Ramjilal PW 10. He refuted the suggestion that the villagers had tied the appellant and had confined him for about an hour. He, however, admitted that the villagers had surrounded the appellant. According to Revarram (PW 8) after sending written report Ex. He refuted the suggestion that the villagers had tied the appellant and had confined him for about an hour. He, however, admitted that the villagers had surrounded the appellant. According to Revarram (PW 8) after sending written report Ex. P. 6 to the police station through Mangilal, they called the appellant who had told them that he had killed the deceased and he may now be saved and that he had illicit relations with the wife of the deceased. But this witness has specifically stated that the appellant was called by the villagers at 6 a. m. and that at that time, the appellant had stayed with them for about one hour, Girraj (PW 9) stated that the appellant had confessed before him that he had murdered the deceased and that he had illicit relations with latters wife. He further stated that the report Ex. P. 6 was scribed before the appellant was called while Ramjilal (PW 10) deposed that after sending the written report Ex. P. 6, the villagers called the appellant, who told, "jo Ho Gaya So Ho Gaya, mujhe Bachchane ke Koshish Karo, Kishore Ko Kawari se Maardiya. Galati Ho Gaye. Mujhe Maaph Kar Do". In his cross examination, he stated that the appellant had stayed with them and thereafter remained in the village throughout the day. It may be pointed out that the appellant was not arrested on 9-4-79. He was arrested on 10-4-79. If the appellant was in the village, there was no reason as to why he was not arrested on the same day? PW 10 Ramjilal Sarpanch admitted that he did not record the statement of the appellant regarding his alleged confession, because the Panchayat did not have any authority to record such confession. This explanation does not appear to be sound and plausible. If in fact the appellant had made an extra judicial confession before the villagers and the Sarpanch, then there was no legal bar in recording his statement by him. ( 25 ) HAJARI (PW 13) stated that when the Sarpanch of the villagers asked the appellant about the death of the deceased, he kept silence for a considerable period and thereafter with folded hands admitted that he had committed a mistake and killed Kishore by an axe but, in his statement Ex. ( 25 ) HAJARI (PW 13) stated that when the Sarpanch of the villagers asked the appellant about the death of the deceased, he kept silence for a considerable period and thereafter with folded hands admitted that he had committed a mistake and killed Kishore by an axe but, in his statement Ex. D. 6 Hajari (PW 13) had specifically stated that a written report was sent through Mangilal to the police station, after the appellant had made extra judicial confession before them. This witness, however, disowned that portion of his police statement and stated that it was wrongly mentioned therein that the written report was sent after the appellant had confessed his guilt. Apparently, this witness has given different versions at different stages. He is not a reliable witness. ( 26 ) RAMKHILARI (PW 14)and Gangadhar (PW 16) have also given different account about the alleged extra judicial confession made by the appellant. In our considered opinion. the learned trial Judge has not carefully scrutinised and correctly evaluated the statements of these witnesses and committed a patent error in holding that the appellant had made extra judicial confession before the villagers after Mangilal was sent to lodge written report Ex. P. 6. From the statements of these witnesses, it is also not borne out that the appellant had voluntarily made any extra judicial confession before these witnesses in the morning of 9-4-79. ( 27 ) IN State of Punjab v. Bhajan Singh, AIR 1975 SC 258 : (1975 Cri LJ 282), it has been observed that the evidence of extra judicial confession in the very nature of things is a weak piece of evidence. ( 28 ) IN Jadumati Khanda v. State, (1993 Cri LJ 2701 ) (Orissa), it has been held by the Division Bench that the extra judicial confession should be addressed to some person and that the confession before assembly of villagers called for confronting accused does not amount to confession. ( 29 ) IN the instant case, the alleged extra judicial confession was not made to any particular person but was alleged to have been made before the assembly of villagers, which appears to us a quite improbable. ( 29 ) IN the instant case, the alleged extra judicial confession was not made to any particular person but was alleged to have been made before the assembly of villagers, which appears to us a quite improbable. The prosecution evidence on this score lacks plausibility and does not inspire any confidence: ( 30 ) IN State of Rajasthan v. Moolchand, (1990 Cri LJ 1917), it was alleged that the accused had made oral extra judicial confession to the person gathered there. It was held by this Court that oral extra judicial confession should be seen with suspicion as it is very easy to introduce it. ( 31 ) IN such circumstances, the prosecution has miserably failed to prove that the appellant had voluntarily made any extra judicial confession admitting his own guilt. On the other hand, the story of extra judicial confession appears to us to be a creature of an after-thought, which is highly suspicious and cannot be acted upon. Therefore, this circumstance No. 5 does not conclusively incriminate the appellant with the crime. in Re. Circumstance No. 6. ( 32 ) THE prosecution witnesses stated that the wife of the deceased has been living with the appellant but, none of these prosecution witnesses has deposed that he has seen the accused appellant and wife of the deceased living together. The prosecution evidence on this count is also vague, incomplete and unreliable. Thus, in our considered view, material chains of evidence are missing in this case and on the basis of such a lame and lifeless evidence, the prosecution has palpably failed to bring home the guilt against the appellant. Therefore, his conviction and sentence cannot be sustained. ( 33 ) IN the result. this appeal is allowed and the conviction and sentence passed by the learned Additional Sessions Judge, Dausa by impugned judgment dated 16-9-1981 against appellant, Khyala are hereby set aside and he is acquitted of the offence under Section 302, IPC. Appellant, Khyala is at present lodged in Central Jail, Jaipur. He should be set at liberty forthwith, if not required in any other case. The Superintendent, Central Jail, Jaipur be informed accordingly. Appeal allowed. .